It is not possible to claim title by adverse possession to land that forms part of the public highway.

Facts

The claimant made an application to the Land Registry to be registered as the owner of a piece of land which formed part of a highway. The application was rejected by Land Registry and this was an application for judicial review of that decision.

Decision

Arden LJ set out what the applicant needed to establish in order to succeed (para 25):

"… Mr Smith must show two things: (1) that under the common law the title of the highway authority may be extinguished by adverse possession – and this means showing that a highway can be brought to an end in this way; (2) that the public's right to use the highway is simultaneously extinguished. If Mr Smith cannot show this, and is limited to showing for instance that he has acquired title to the surface of the road by adverse possession, he would have achieved nothing because the road would not have ceased to be a highway and so would continue to be subject to the statutory vesting in s263. Likewise he has in practice achieved nothing if the right of passage over the land he occupies still subsists."

His counsel cited a number of cases. However, "none of these cases establishes the proposition that the title to land on which a highway runs may be acquired by a squatter by adverse possession." (Para 37). And in relation to extinction of a right of way she said at paras 38-40:

"Earlier in this judgment, I explained the highway had two components: a physical element and an incorporeal element, namely a public right of passage. Further, when dealing with adverse possession, I explained that a squatter can only acquire the title of the owner whom he has dispossessed. Accordingly, there is no means in law by which, as a result of occupying land forming part of the highway, Mr Smith or any squatter can bring to an end the public's right of passage… the public right to use the highway cannot be terminated by action which affects some members only of the public because the right belongs to them all, and the public is an ever-changing class …On the authorities it is no answer that the public can use the byway without needing to pass through the land now occupied by Mr Smith "